PL EN


2017 | 26(26) | 254-267
Article title

ORDRE PUBLIC, GENERAL CLAUSES, APPLIANCE OF LAW BY JURISPRUDENCE, FRENCH LAW

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EN
The article describes the appliance of law in French and Polish legal systems and the role of jurisprudence in both jurisdictions. In France and Poland the functioning of general clauses is completely different and the aim of the paper is the presentation of thinking about law in both states by depiction of literature and judgements. As the example I chose the clause of ordre public due to the vast differences in operation of the institution in both legal systems. It is a general clause being one of foundations of French civil law whereas in Poland it functions only in very limited range. In French law the main regulation is included in Article 6 of Code civil. The further rules refering to ordre public in the field of contract law are placed in art. 1102 and 1162. In 2016 there was the reform of law of obligations in Code civil and the legal status before and after were presented. Ordre public is effectively used by jurisprudence in a number of cases in French civil law. Due to rare changes in Code civil French courts have much more freedom in deciding about legal cases than the Polish ones. French state very deeply interferes into the economy so the courts must be provided with legal instruments in order to deal with the problems and apply the rule of law to each case. In Polish law ordre public existed in art. 55 of Code of obligations (freedom of contract) but nowadays we can find only in Article 7 of international private law. Ordre public is the field of international private law is vital but courts are very cautious in its appliance, limiting its usage only to a few cases, such as denial of registration a homosexual union into civil registry. Why Polish courts are so uneager to use the clause? In our legal culture the judges are wary of general clauses and the operation of ordre public is just one of examples. This proves a different usage of general clauses in both legal systems and difference in legal cultures. French jurisprudence has an immense effect on the shape of law, courts actively apply the clause of ordre public while in Poland the verdicts are cautious. Way of thinking about law differs in both states despite the common heritage of Roman law and belonging to the tradition of civil law. In France the freedom of deciding about the cases in the major value while in Poland this certainty of verdicts is believed to be the most important principle.
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